Judge: Twitter offers free speech, American style

A New York judge has ruled that Twitter offers freedom of speech in the grand tradition of American liberty – but that won't help you when the police come knocking to take a peek at your posting history.

"It is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton, and Thomas Jefferson would have loved to tweet their opinions," Judge Matthew Sciarrino wrote in his decision, citing several founding fathers of the United States. "Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected."

The ruling is bad news for Malcolm Harris, who was one of 700 protesters arrested during an October 2011 gathering of the Occupy Wall Street movement in New York City. Harris sought to oppose a subpoena demanding access to all of his Twitter posts from September 15, 2011 through the end of the year. Although Harris has deleted the posts and closed his account, Twitter will now have to hand over those records to prosecutors from its archives.

"If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy," Judge Sciarrino writes. The phrase "reasonable expectation of privacy" is significant, it signifies one legal test that is used to determine whether an activity is covered under the privacy protections of the Fourth Amendment of the US Constitution. In the case of Twitter, apparently, the answer is no.

"There is no proprietary interest in your tweets, which you have now gifted to the world," Judge Sciarrino continues. "This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist."

Police would need a warrant to access those private conversations, the judge says. Tweets? Not so much.

This will hardly be the first time Twitter has turned over account information to authorities. On July 2, the company posted its first Twitter Transparency Report, listing the number of times it responded to requests for information from government agencies worldwide since January 1, 2012. The results were rather depressing.

But Twitter has not always handed over its users' information willingly. In fact, it filed a motion with the court to quash the subpoena that would force it to turn over Harris's posting history, on the grounds that its own terms of service specify that users retain rights to their own content, and that to disclose that content without permission would violate the Fourth Amendment.

If Judge Sciarrino's ruling stands, Twitter's lawyers wrote, "Twitter will be put in the untenable position of either providing user communications and account information in response to all subpoenas or attempting to vindicate its users' rights by moving to quash these subpoenas itself – even though Twitter will often know little or nothing about the underlying facts necessary to support their users' argument that the subpoenas may be improper."

Unfortunately, however, Twitter's motion failed. It seems likely now that for all the requests for disclosure the micro-blogging service received from the US government so far, the number is only going to increase, and rapidly. What Samuel Adams, Benjamin Franklin, Alexander Hamilton, and Thomas Jefferson might think of that is left to the imagination. ®